How Our Sexuality Is Being Restricted One Bad Law at a Time

By Dr. Marty Klein, AlterNet. Posted June 4, 2008.

With anxiety and anger about sexuality reaching a noisy crescendo, Congress members and state legislators are responding with laws that placate the mob du jour -- laws restricting sexual expression that have little chance of surviving even the lightest Constitutional scrutiny.

For example, Congress has passed law after law attempting to rid the Internet of pornography. Texas recently passed a law requiring strip clubs to pay a special tax of $5 per head (no jokes, please). This spring, Indiana passed a law requiring vendors of "sexually explicit" materials to register with the state and pay a $250 fee.

But every federal law censoring the Internet has been derailed by a court. The Texas law was overturned by their Supreme Court just two months ago. The Indiana law, you can be sure, will be overturned before Labor Day.

All because of "activist judges." You know what an "activist judge" is -- a judge who decides that a law you like happens to be illegal. And more often than not, that illegal law concerns sex.

Most people understand that Congress can't pass a law reinstituting slavery -- and that if it did, a court would overturn it. Similarly, most Americans understand that their state legislature can't authorize murder, or require all its residents to eat beef to qualify for a driver's license.

Unfortunately, most Americans can't actually explain why certain laws cannot be established, no matter how much the public supports those laws.

The explanation is that we live by a set of rules -- the Constitution and its Bill of Rights -- that elected officials simply cannot violate, even when implementing the people's will.

Unfortunately, many Americans think their representatives should be allowed to trample these Constitutional rules when they're upset about sex. Sexual danger. Sexual fear. Sex panics break out, the people moo loudly. The Republic's in danger: there's a nipple on TV. Teens are getting birth control. There are lesbians in the Army. Sexuality is considered a public health menace, and many people want tough (albeit illegal) laws to battle the epidemic.

Legislators acquiesce, passing laws in response that break the larger, Constitutional rules.

When these laws are successfully challenged, counties and states face huge legal bills (Florida's municipalities spent over $10,000,000 last year fighting for bans on strip clubs, thong bikinis, adult bookstores, and the like), and everyone's time is wasted. But legislators win big even when their laws are losers.

"Don't blame me," they tell the angry electorate, "I voted for a law you demanded that would protect our children, but those snooty judges decided you citizens couldn't have the laws you asked us to pass. You might as well live in Russia."

This is legislative cowardice. Most lawmakers are lawyers. They can generally guess which new laws won't stand up. They vote for the laws anyway, watch them (predictably) get overturned, then blame the courts, the ACLU, and "liberal" plaintiffs (bookstores, strip clubs, a student who simply wanted birth control). Doing this with "porn," for example, has been good for many legislators' careers; Kansas Senator Brownback and California state senator Calderon, for example, both made their political fortunes from violating their oath of office.

Passing popular but constitutionally suspect laws can also be part of a testing process. If a questionable law survives a state court challenge, allied sponsors try to get them passed elsewhere (a popular strategy with laws restricting abortion). If a law is overturned, sponsors attempt to learn from the experience, reshaping the law and trying it elsewhere. This has been popular with theo-conservative legal groups like the American Center for Law & Justice and the Community Defense Council, who promote model ordinances designed to eliminate adult entertainment and to diminish church-state separation.

Americans frightened about sex and angry about "activist courts" need a civics lesson: what exactly is the role of our courts, and why do they sometimes challenge or negate the obvious will of the majority?

The answer is a 2,000-year-old concept called the Separation of Powers. A centerpiece of American government, we didn't invent it -- the Romans had it in their constitution. This revolutionary idea gives an independent judiciary responsibility for reviewing laws made by an executive or legislative branch. Under this system, courts are mandated to judge whether individual laws break the ultimate law -- the Constitutional rules of the legal system itself.

See more stories tagged with: sex, rights, constitution, laws, courts, judicial activism

Dr. Marty Klein is a California-based policy analyst and author of the recent book America's War On Sex: The Attack on Law, Lust, & Liberty.

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